Knipe v. Heckler, 84-1179

Citation755 F.2d 141
Decision Date13 February 1985
Docket NumberNo. 84-1179,84-1179
Parties, Unempl.Ins.Rep. CCH 15,881 Gene KNIPE, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Department of Health and Human Services, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

John G. Heike of Weisbrod & Weisbrod, Dallas, Tex., for plaintiff-appellant.

Mary K. Biester, Asst. Regional Atty., Dept. of Health and Human Services, Dallas, Tex. (Gary L. Richardson, U.S. Atty., Ralph F. Keen, Asst. U.S. Atty., Muskogee, Okl., Gayla Fuller, Acting Regional Atty., Dept. of Health and Human Services, Washington, D.C., were also on the brief), for defendant-appellee.

Before HOLLOWAY, Chief Judge, and DOYLE and SEYMOUR, Circuit Judges.

HOLLOWAY, Chief Judge.

Gene Knipe appeals from the denial of Social Security disability insurance benefits and supplemental security income benefits. I R. 2. On August 7, 1981, Mr. Knipe filed an application for benefits alleging that he was "disabled because of back problems, heart trouble, high blood pressure and diabetes." I R. 74; see also II R. 73-76. At the administrative level the Secretary of Health and Human Services (Secretary) determined that Mr. Knipe was not disabled under the Social Security Act, and denied Mr. Knipe's request for benefits. II R. 97-111. On May 28, 1982, after a hearing the Administrative Law Judge (ALJ) denied benefits, II R. 22, 34, and on February 7, 1983, the Appeals Council denied Mr. Knipe's request for review. II R. 4.

On March 25, 1983, Mr. Knipe brought an action in district court for review of the administrative decision. I R. 1. The district court denied Mr. Knipe's motion for summary judgment, affirmed the ALJ's decision, and entered judgment for the Secretary. I R. 78. Mr. Knipe appeals.

I
A. Facts

At the time of the ALJ's decision, Knipe was forty-five. II R. 32-33. He had a high school education. He had worked as a police officer for a number of years, a security guard, and then as a driver/salesman. He left his job as a salesman after his second job-related back injury.

Knipe sought benefits alleging that he had essentially four impairments. First, he complained of his bad back and the pain related to it. His back injuries had required his hospitalization on at least two occasions. In February 1980, X-rays showed significant narrowing of the intervertebral disc at the lumbrosacral junction, indicating probable disc degeneration or herniation. Brief for Appellee 3. Surgery was not performed because Mr. Knipe was a diabetic with high blood pressure and extensive heart disease. Because of these other health problems, one physician commented that "[n]o neurosurgeon in his right mind will operate on this patient." II R. 273. He was given conservative treatment including local heat, massage, II R. 153, traction and exercise, the latter two to be continued at home. II R. 189. This treatment did provide him with some relief from the pain. II R. 296, 298.

Second, Mr. Knipe suffered from adult onset diabetes mellitus. II R. 259. 1 He takes insulin for this condition. II R. 284. He has "had trouble controlling [his] diabetic problem of 11 years in duration with apparently a so-called brittle type of diabetes," II R. 194, which "necessitates the patient's having hospitalization for management at intervals." II R. 189. He has been in a diabetic coma on two occasions. II R. 146.

Third, Mr. Knipe suffered from high blood pressure. This condition has necessitated that he take medication. See II R. 189. 2

Fourth, he suffers from severe heart disease, having had four heart attacks in the previous three years before the hearing. II R. 26, 57, 284. He has severe left ventricular dysfunction with an ejection fraction of only 22%, 3 II R. 265, and severe diffuse three vessel coronary artery disease. II R. 265. His left anterior descending artery was totally occluded at the level of the first diagonal branch; one circumflex marginal branch had an 80% proximal stenosis and the right coronary artery was a small vessel with a 90% mid lesion. II R. 265. Prior to the hearing before the ALJ, the agency reports on two occasions stated the diagnosis that Knipe had arteriosclerotic heart disease. II R. 101, 103. 4 After the hearing the ALJ found that Knipe suffered from ischemic heart disease. 5

Knipe also complained of troubles with his legs which may be attributable to the above health problems. See II R. 134. He had numbness in his left great toe and adjacent areas. II R. 153; see also II R. 63-54, 275. Knipe testified that when he stands for several hours his legs become swollen. II R. 63-64; see also II R. 134. There is also atrophy of his intrinsic foot muscles. II R. 153.

Further compounding the above health problems is Mr. Knipe's mental impairment which he alleges is attributable to brain damage from one of his heart attacks. II R. 13. Although it is unclear whether Knipe explicitly asserted that this was a separate impairment before the ALJ, the ALJ did refer to a psychological evaluation of Mr. Knipe. II R. 28. This evaluation stated that "with regard to [Mr. Knipe's] neuropsychological status, test data (the Hain scored Bender Gestalt) is indicative of organic impairment. The difficulty which Mr. Knipe seems to experience in putting both conceptual and concrete things together ... could well be a reflector of this type impairment." II R. 285. The evaluation also found that Knipe had a verbal I.Q. of 82, a performance I.Q. of 76, and a full scale I.Q. of 78. II R. 285. He had an eighth grade reading level, a sixth grade spelling level, and a third grade arithmetic level. Id. 6 The evaluation did find that Knipe was "socially sensitive" and that his strengths were his "common sense" and his "facility with the English language." However, his "[w]eaknesses were apparent in his ability to think and reason abstractly as well as his visual-motor coordination in both familiar and unfamiliar settings. He has difficulty putting concrete things together with his hands as well as generalizing from his knowledge of concepts." II R. 285.

With this brief summary of Mr. Knipe's impairments as our backdrop, we now turn to the decisions of the ALJ, the Appeals Council, and the district court.

B. The rulings below

The ALJ stated that the issues were whether Knipe "is entitled to a period of disability and to disability insurance benefits under Sections 216(i) and 223 respectively of the Social Security Act; and whether the claimant is disabled under Section 1614(a)(3) of the Social Security Act." II R. 22. The ALJ found that the claimant had "the following impairments: ischemic heart disease, controlled diabetes mellitus, controlled herniated intervertebral disc, L4, right, treated conservatively." II R. 32.

In concluding that Knipe was not disabled, the ALJ first reasoned that the preponderance of the medical evidence demonstrated that Knipe did not suffer from an impairment equal to any impairment in the Listing of Impairments. II R. 31. See Listing of Impairments, 20 C.F.R. pt. 404, subpt. P, app. 1 (1982) (Listing of Impairments). He reached this conclusion apparently believing that neither the claimant's diabetes, heart disease, nor back troubles met the Listing of Impairments. The ALJ concluded that although the claimant suffered from a combination of impairments which would prevent him from performing his past occupations of patrolman or security guard, which was work requiring a medium level of exertion, these impairments would not prevent him from engaging in light work on a sustained basis. II R. 31. Finally the ALJ explained that Knipe is 45 years old and under Regulations 404.1563 and 416.963 he is a younger individual. Under Regulations 404.1564 and 416.964, he has a high school education and above, and he has performed primarily skilled work. Given this, Rule 202.21 of the Medical Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (1982) (the grids), directs that Mr. Knipe be found not disabled. II R. 32. The Appeals Council concluded that there was no basis under the regulations for granting Knipe's request for review of the ALJ's decision.

The district court affirmed and entered summary judgment for defendant. The court reasoned that the finding of the Secretary and the inferences based on those findings cannot be disturbed if supported by substantial evidence. I R. 75; see 42 U.S.C. Sec. 405(g). The court said that the record reflected that Knipe had a twelfth grade education with work experience as a truck driver, salesman, security guard, and sheriff's deputy; that he had testified that his daily activities consisted of limited lawn mowing and sitting around his mother's house; and that Knipe stated he could walk two or three blocks and drive an automobile short distances. I R. 77. The court concluded that the decision was supported by substantial evidence and that the "evidence clearly reflect[ed]" that Knipe had a residual functual capacity to do light work. I R. 77, 78. 7

II Disability under the Listing of Impairments

Mr. Knipe applied for disability insurance benefits, 42 U.S.C. Sec. 423(a)(1), and supplemental security income benefits. 42 U.S.C. Sec. 1382(a)(1). Under each, a claimant must be disabled to qualify for benefits. See, e.g., 42 U.S.C. Secs. 423(a)(1), 1382(a)(1). Our scope of review of a disability award determination is restricted. We must uphold the decision if it is supported by substantial evidence. See 42 U.S.C. Sec. 405(g); Tillery v. Schweiker, 713 F.2d 601, 603 (10th Cir.1983); see also Bowen v. Heckler, 748 F.2d 629, 634 (11th Cir.1984).

Substantial evidence is "defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' It must be 'more than a mere scintilla.' " Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). This oft-cited language is not a...

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